Testimony Rules Eased

State Lifts Restrictions On Nontreating Doctors

August 17, 1999|By LYNNE TUOHY; Courant Staff Writer

The state Supreme Court Monday reversed a long-standing ruling barring testimony by nontreating physicians, and essentially warned defense lawyers: Beware of what you ask for; it may come back to haunt you.

The unanimous ruling benefits Helene E. George, who suffered neck and knee injuries in a 1993 car accident in Bridgeport. She sued the driver of the car that hit her, Donald W. Ericson, to recover medical costs and compensation for disability to her right knee. One of George's doctors diagnosed the disability to her knee at 5 percent and another said the disability was 20 percent.

A doctor hired by the defense examined George and her medical records and concluded she suffered a 15 percent permanent disability to the right knee, and assessed her knee complaints as ``very real.''

The defense subsequently took this doctor off its witness list and aggressively challenged George's credibility at trial. The judge denied George's bid to call the defense doctor as her own witness, citing a 1964 state Supreme Court ruling that barred testimony by nontreating physicians as unreliable and based on hearsay. The jury awarded George $12,174 in medical expenses, but nothing for long-term disability.

Justice David Borden, who wrote the court's unanimous ruling released Monday, said the logic behind that 1964 ruling was unsound and inaccurate.

``This proposition was incorrect when it was stated, and it remains incorrect today,'' Borden wrote. He noted that any perceived exaggerations or inaccuracies in what a patient or victim may convey to a doctor could be exposed during cross- examination, or by the voluminous medical documents that often accompany cases.

``When physicians examine parties, whether for treatment or litigation, they routinely rely on numerous sources of data, including their own physical examination, tests that they may have administered, available medical records and the statements a party has made during the evaluation,'' Borden wrote.

Monday's ruling brings Connecticut in line with federal rules of evidence in effect since 1992, which make no distinction between treating and nontreating physicians.

Prominent New Haven plaintiffs lawyer William Gallagher predicted that the ruling will be applied to scientific as well as medical testimony, and that it will eliminate the need for lawyers to ask questions based on convoluted hypotheticals to get around hearsay objections.

``This could become a very significant decision,'' Gallagher said. ``It's an end to the artificial, hypothetical questions used in these cases, the kind of questions used every day in malpractice cases. And if a medical expert can rely on hearsay, why can't [the witness] do that if he's a tire expert, or an expert on computers or telephone systems or whatever? What this does is open the door to whether experts can rely on hearsay.''

For Gallagher, it's a case of deja vu with a better result. He unsuccessfully represented the plaintiff back in the 1964 case.

Andrew S. Groher, immediate past president of the Connecticut Trial Lawyers Association, said the ruling is an important one and a victory for plaintiffs, but differed with Gallagher on its sweeping effect.

``Will it turn the system on its ear? No,'' Groher said. ``I don't believe you have to use hypothetical questions to elicit an expert opinion now.''

Groher said the real impact of the case will be to discourage defense lawyers from haphazardly sending plaintiffs to doctors to shop for contrary diagnoses, because they will be forced to confront in court those evaluations that favor the plaintiff.

The justices Monday ordered a new trial for George, concluding that the jury likely would have returned a more favorable verdict had it heard from the defense doctor.

Lawyers for George and Ericson could not be reached for comment Monday.